I noticed several themes in the Plains Commerce Bank oral argument. In no particular order, here are my thoughts.

First, the regulatory vs. adjudicatory jurisdiction question. Justice Scalia jumped right out with the first question to the Bank’s counsel (Mr. Banker) about the Bank’s argument that the Montana 1 exception allows for tribal regulatory jurisdiction, but not adjudicatory jurisdiction. After that colloquy, it appeared the Bank’s argument was discarded, since, as Justices Souter, Ginsburg, and Scalia noted, (1) Montana 1 and the subsequent cases did not make that holding, and (2) the distinction does not appear in federal preemption cases where Congress regulates but does not expressly provide for adjudication.

Second, the critical question of how a tribe can have authority to regulate or adjudicate the rights of nonmembers who cannot vote in tribal elections (what Justice Kennedy usually refers to as the consent of the governed question) appears to have been a wash. Mr. Frederick faced these questions from Justices Kennedy and Ginsburg. His answer was that a nonmember can seek review of a tribal court decision in state and federal courts once the tribe/tribal entity/member/other plaintiff seeks enforcement of the tribal court decision in state court (and perhaps in federal courts, too). I thought this was a wash, because in the criminal context (i.e., Duro), the Court seemed to reject (or ignore) the argument that a criminal defendant could get habeas review of a criminal conviction. But in the civil context, the Court might not be so worried.

Third, the Chief Justice repeatedly questioned Mr. Frederick about how to find tribal law, strongly implying that it was unknowable or too difficult to locate. Of course, with the excellent record of the Cheyenne River Sioux’s tribal judiciary (that is, being published in the Indian Law Reporter all the time), that question didn’t have as much impact. Also, as Mr. Frederick noted, the CRST adopted the federal rules of civil procedure, something the Bank should be able to recognize. Justice Scalia and the Chief Justice worried that the tribal court would take the FRCP and interpret the Rules in accordance with tribal law, turning knowable domestic law into unknowable tribal law, but that didn’t seem to go very far.

Fourth, related somewhat to the previous point, the tricky question of whether the tribal jury verdict and award relied upon tribal common law. Here, I thought Mr. Frederick’s responses were nothing short of outstanding. The Bank all along has argued that the tribal jury and courts relied upon a tribal common law cause of action (discrimination, a tort), rather than a simple contract claim. The jury verdict noted that they ruled in favor of the Long Family on both claims, tort and contract. However, clearing away the debris, Mr. Frederick noted that the tribal court actually found that there could be no discrimination claim and that there were facts that supported the verdict on the contract claim alone. Moreover, Mr. Frederick noted that the tribal court made that ruling by relying on the FRCP. And, interestingly enough, the question of whether (under the FRCP) a federal court can find that a verdict supported by one allowable cause of action and one invalid cause of action has the federal circuits split. Naturally, the tribal court (following the FRCP) would have to pick one of the routes followed by the split circuits, and did so. Luckily, the tribal judge (BJ Jones, handling a complex case brilliantly) followed the Ninth Circuit’s rule (propounded by Judge Kozinski) that the entire verdict is allowable so long as the facts support the valid cause of action (that is, the verdict is still good even after kicking out the invalid cause of action).

Of course, all of this presumes that the tribal common law cause of action was invalid as applied to a nonmember, which Mr. Frederick correctly must have predicted the Court would think.

Fifth, at least a few Members of the Court (Souter, for one) thought this fact pattern might be a prototypical example of the Montana 1 exception on commercial consensual relations. That’s a good sign.

Sixth, and finally, it seems pretty clear that the Chief Justice and Justice Alito are not very sympathetic to tribal interests. The Chief Justice in particular pressed Mr. Frederick repeatedly on questions of tribal law, the racial character of Indian-owned corporations, and on the facts. Justice Alito made some half-hearted attempts to resurrect Mr. Banker’s argument, but by the end of Mr. Frederick’s argument, he almost seemed to be conceding to the Long Family, noting that the facts seemed to favor the Longs and asking Mr. Frederick for his recommendation on a general rule.

I’m still skeptical of the Long Family’s chances, given the Court’s composition, but from the transcript it appears the argument went well for the Long Family.

6 Responses to First Impressions of the Plains Commerce Bank Oral Argument

Nice analysis of the argument. I think you hit all the big points. Nice job by Mr. Frederick and Mr. Gannon.

I can’t add much to your comments, but in reading the transcript one thing that struck me was the Court’s continued questioning (particularly through the Chief Justice and Justice Alito) about how to craft an overarching bright line rule in this case. Clearly this is one reason (maybe THE reason) why this case was heard. Thanks to the great briefing organized by the Supreme Court Project and Mr. Frederick’s nice presentation, I think the transcript reflects the Court’s growing realization during the argument that this may not be the case they thought it was, hence the need for the continued set of hypotheticals. While I am as equally skeptical as you, I think one positive that can be taken from yesterday’s session could be an awareness on the part of some of the Justices that the facts of this case do not easily justify a need to completely rewrite the Montana rule. I guess we’ll see.

Agreed. The biggest concern many of us have is the possibility of simply adopting an Oliphant-style bright-line rule in the civil context — no civil jurisdiction ever. This doesn’t appear to be a vehicle for that kind of ruling. But that doesn’t mean there won’t be one in the future.

I agree with Matt’s skepticism about the Longs’ chances to actually prevail, but I’m hopeful as well. The Court’s questioning, to me, seemed to show that they were trying to find a limit to tribal court jurisdiction over non-members that would not eviscerate Montana’s first exception. Hence the parade of hypos (such as “Let’s say Chase Manhattan loans money to someone, and then a tribal member takes over the loan – are you saying that the tribal court has jurisdiction over Chase Manhattan?”). But in the end, dealings between tribal members and non-members, connected with on-reservation property, seem (I think) safe for tribal court jurisdiction under Montana 1 (absent a choice of forum provision to the contrary).

Especially intruiging to me was the discussion about where to locate the “consensual relationship,” upon which “Montana 1 ” tribal court jurisdiction rests. It always seemed obvious to me that it’s the contract or agreement which is the basis for the jurisdiction, rather than the party’s consent to enter court.

I was also struck by the great disparity between the quality of the oral arguments – counsel for the Longs did an outstanding job, while counsel for the bank seemed lost much of the time.

Although I generally despise both the tone and content of Justice Scalia’s previous Indian law statements, he seemed genuinely reasonable and measured here. First, parties have the ability to insert choice of forum provisions in their contracts. The bank didn’t do that here, so they should be held to the tribal court as the forum. Second, he kept inserting “on the reservation,” into the questioning of the other justices (Ginsberg, I think), implying that as long as you’re dealing with land on the reservation, Scalia’s willing to at least entertain the notion of tribal court jurisdiction. Finally, I’m not sure where he is on the effect of the BIA loan guarantee program, and whether that shows that a lender knew it was dealing with Indians.

Overall, room here for guarded optimism: Ginsberg, Roberts, and Alito seem unwilling to uphold tribal court jurisdiction here, while Souter, Kennedy, and Scalia (?!) seem inclined to support it. No clue about Breyer and Thomas (though a repeat of Thomas’ concurrence in Lara may be in the offing here).

Nice analysis gentlemen! Thanks. I regret I could not attend this important argument in person but I am more confident in the potential outcome for tribal court civil jurisdiction now after reading Gavin Clarkson’s and your posts.

Thankfully the Longs had well-qualified and well-prepared counsel and excellent briefing from the Supreme Court project and others including amici (thanks to Steve McSloy).

I agree that the analysis of the arguments presented before the court in Plains Commerce Bank were indeed astute and very informative.

One thing that puzzled me about the information used in the oral arguments by the respondents was the lack of emphasis placed on the importance of Williams v. Lee (1959). Although this case has been substantially undermined in Federal Indian law by the court, it is still a valid precedent and one that confirms a positive ‘yes’ to the question asked by the Chief Justice to Mr. Frederick, “But isn’t it true that this would be the first case in which we have asserted or allowed Indian tribal jurisdiction to be asserted over a nonmember?” Indeed, the general principle of Williams confirmed inherent tribal sovereignty over non-Indians within the reservation unless there was congressional legislation or a treaty to the contrary.

Although I agree that the court seems to be on a mission to negate tribal civil jurisdiction over non-Indians, on the balance of probabilities, I think it was wiser for the respondents to stick with trying to fit the facts of the case into one or both of the Montana exceptions. However, I also feel that it was maybe an ideal opportunity for the respondents to embark on re-asserting inherent tribal sovereignty as a positive idea to be embraced and used by the Justices and also, for them to have categorically asked the court to re-affirm the general principle used by Hugo Black in Williams v. Lee.

Moreover, maybe the respondents should have played more on the argument of federal pre-emption, something that the court has liked on various occasions over the last 50 years.

The same old concerns over constitutional protections were raised by the Justices in their questions about tribal jurisdiction of non-Indians in tribal court. Again, this viewpoint continues onwards with the often cited “racist” element and justification given by the majority of the Oliphant court in ruling that tribal courts have no criminal authority over non-Indians. Indeed, this justification seems to show no sign of abating.

I would like to be hopeful and say that the Justices will see common sense and decide in favour of the respondents and tribal law. However, after finishing a PhD which examined Federal Indian law from 1959 to 2007 and used the private papers of six Supreme Court Justices, I am afraid, and it pains me to say it, that the court will continue on the path to nullifying tribal civil jurisdiction over non-Indians, confirming Oliphant as a bright line rule in civil case law.